Citation Nr: 0211682
Decision Date: 09/10/02 Archive Date: 09/19/02
DOCKET NO. 99-20 132 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Muskogee,
Oklahoma
THE ISSUE
Entitlement to service connection for a herniated disc of the
lumbar spine.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Hallie E. Brokowsky, Associate Counsel
INTRODUCTION
The veteran had active service from August 1965 to April
1969.
This matter comes before the Board of Veterans' Appeals (BVA
or Board) on appeal from a May 1999 rating decision of the
Department of Veterans Affairs (VA) Regional Office in
Houston, Texas (RO) which denied the benefit sought on
appeal. The veteran's claims file was subsequently
transferred to the Muskogee, Oklahoma RO.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of this appeal has been obtained.
2. The veteran's current lumbar spine disorder is not
causally or etiologically related to the veteran's active
service.
CONCLUSION OF LAW
A herniated disc of the lumbar spine was neither incurred in
nor aggravated by active military service. 38 U.S.C.A.
§§ 1110, 5103A, 5107(b) (West 1991 & Supp. 2001); 66 Fed.
Reg. 45,630-32 (Aug. 29, 2001) (to be codified as amended at
38 C.F.R. §§ 3.102, 3.159); 38 C.F.R. §§ 3.102, 3.303, 3.304,
3.306 (2001).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
As a preliminary matter, in November 2000, the Veterans
Claims Assistance Act of 2000 (VCAA) became law. The VCAA
applies to all claims for VA benefits and provides, among
other things, that the VA shall make reasonable efforts to
notify a claimant of the evidence necessary to substantiate a
claim for benefits under laws administered by the VA. The
VCAA also requires the VA to assist a claimant in obtaining
that evidence. See 38 U.S.C.A. §§ 5103, 5103A (West Supp.
2001); 66 Fed. Reg. 45, 630 (Aug. 29, 2001) (to be codified
at 38 C.F.R. § 3.159).
First, the VA has a duty under the VCAA to notify the veteran
and his representative of any information and evidence needed
to substantiate and complete his claim. The rating decision,
the statement of the case, and the supplemental statement of
the case issued in connection with the veteran's appeal, as
well as additional correspondence to the veteran, have
notified him of the evidence considered, the pertinent laws
and regulations, and the reason that his claim was denied.
Under the circumstances, the Board finds that the
notification requirements of the VCAA have been satisfied.
Second, the VA has a duty to assist the veteran in obtaining
evidence necessary to substantiate his claim. In this
regard, the veteran's service medical records and VA medical
records have been obtained, in addition to records associated
with his claim for Social Security benefits. The veteran was
also afforded a VA examination, in response to a January 2001
Board remand. The veteran and his representative have not
made the Board aware of any additional evidence that should
be obtained prior to appellate review, and the Board is
satisfied that the requirements under the VCAA have been met.
As such, the Board finds that the duty to assist was
satisfied and the case is ready for appellate review. See
Bernard v. Brown, 4 Vet. App. 384, 392-394 (1993). See also
VAOPGCPREC 16-92 (July 24, 1992) (published at 57 Fed. Reg.
49,747) (1992).
The veteran claims entitlement to service connection for a
herniated disc of the lumbar spine. A veteran is entitled to
service connection for a disability resulting from a disease
or injury incurred in or aggravated in the line of duty while
in the active military, naval, or air service. See
38 U.S.C.A. §§ 1110, 1131 (West 1991 & Supp. 2001); 38 C.F.R.
§ 3.303 (2001). The mere fact of an in-service injury is not
enough; there must be evidence of a chronic disability
resulting from that injury. If there is no evidence of a
chronic condition during service, or an applicable
presumption period, then a showing of continuity of
symptomatology after service is required to support the
claim. See 38 C.F.R. § 3.303 (b). Evidence of a chronic
condition must be medical, unless it relates to a condition
to which lay observation is competent. See Savage v. Gober
10 Vet. App. 488, 495-498 (1997). If service connection is
established by continuity of symptomatology, there must be
medical evidence that relates a current condition to that
symptomatology. Id.
When a veteran seeks service connection for a disability, due
consideration shall be given to the supporting evidence in
light of the places, types, and circumstances of service, as
evidenced by service records, the official history of each
organization in which the veteran served, the veteran's
military records, and all pertinent medical and lay evidence.
See 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a).
In order to establish service connection for a claimed
disability, the facts, as shown by the evidence, must
demonstrate that a particular disease or injury, resulting in
a current disability, was incurred or aggravated in active
military service. See 38 U.S.C.A. § 1110; 38 C.F.R.
§ 3.303(a) (2001).
The evidence of record consists of the veteran's service
medical records, VA medical records, and records associated
with the veteran's claim for Social Security benefits, as
well as a VA examination report.
The veteran's Report of Medical History for enlistment, dated
July 1965 indicates that the veteran denied having arthritis
or a bone or joint deformity. The contemporaneous Report of
Medical Examination shows that clinical evaluation of the
veteran's upper and lower extremities, spine, and
musculoskeletal system was normal.
Service medical records dated February 1967 show that the
veteran reported experiencing pain in the lower right
quadrant of his back for 4 1/2 days. the impression was muscle
spasm. The veteran had difficulty with forward bending.
Examination showed that the veteran's back was symmetrical,
but that his muscles were somewhat tense and there was pain
upon pressure over L-5. The veteran was treated with Robaxin
and stated that his pain had improved. March 1967 records
show that x-rays were negative for deformity, and the
examining provider noted that the veteran's examination was
negative except for forward bending. The impression was low
back pain and one week of light duty was recommended. In
August 1967, according to service medical records, the
veteran incurred a contusion of the elbow and cervical spine
in a collision involving a privately owned automobile. He
returned to full duty after treatment.
The veteran's March 1969 Report of Medical Examination for
purposes of separation indicates that clinical evaluation of
the veteran's spine, upper and lower extremities, and
musculoskeletal system was normal.
An August 1987 private medical record shows that the veteran
complained of centralized low back pain with occasional
radiation to the left hip and thigh. Examination showed
sacroiliac spasm and scoliosis, probably muscular, secondary
to pain. X-rays were normal. The diagnosis was chronic low
back strain.
A February 1993 private medical record indicates that the
veteran complained of back pain for three to four days and
reported that he may have pulled a muscle. Examination
showed the veteran moved very slowly and stiffly. The
diagnosis was chronic low back strain.
A February 1994 private medical record states that the
veteran reported that he had back pain for one day, but that
his back pain had been chronic and intermittent since 1968.
He complained of pain upon extension of both legs and acute
low back pain, which was "shooting to [his] legs." The
diagnosis was discogenic back pain.
VA medical records dated February 1994 to February 1999
indicate that the veteran had a disc herniation at L4-L5. A
February 1994 VA medical record shows that an x-ray of the
lumbar spine showed a narrow intervertebral disc space at L4-
L5, with narrow neural foramina and some narrowing sclerosis
of the articular facets at L4-L5 on the right. A March 1994
CT scan showed a narrow intervertebral disc space at L4-L5,
with a posterior central, broad-based protrusion at L4-L5.
Vertebral body height was normal and there was no evidence of
spondylolysis or spondylolisthesis. The diagnosis was
posterior central, broad-based disc herniation at L4-L5 with
associated extrusion and paucity of the right epidural fat
pad, with some impingement upon the right neural formina and
associated hypertrophy of the posterior ligamenta flava at
L4-L5.
A September 1995 notation on the veteran's "Problem List"
shows that the veteran had possible bilateral radiculopathy.
A VA discharge summary from a February to March 1997
hospitalization indicates that the veteran had a history of a
herniated disc.
A May 1997 private medical record associated with the
veteran's claim for Social Security benefits shows that the
veteran reported that he had been a welder since 1988, and
that he had also worked with heavy machinery in steel and
pipe yards and had done police work. A history of lumbar
disc disease was noted.
A December 1997 treatment note also indicates that the
veteran had lumbar disc disease with right radiculopathy and
low back pain. An April 1998 VA treatment record also noted
a history of a herniated disc, as does a May 1998 discharge
summary and a June 1998 treatment note.
Prescription receipts from 1997, 1999, and 2000 show that the
veteran was prescribed medication for leg cramps and muscle
spasms.
A March 1999 private medical report associated with the
veteran's claim for Social Security benefits states that the
veteran reported having lumbar disc disease for many years.
According to the report, he reported that his lumbar disc
disease began in 1967, and had been intermittent since, but
was severe approximately every two years. He denied
deformities or fractures. Examination was negative for
evidence of kyphosis or scoliosis of the spine. The cervical
spine was nontender with full range of motion, but the
thoracic and lumbar spines were tender upon range of motion.
Straight leg raising was negative bilaterally, leg lengths
were equal, and toe strength was equal bilaterally. Heel and
toe walking could not be performed secondary to a February
1999 surgery on his right leg, but the veteran reported that
he could normally perform the test. The veteran did not use
any assistive devices. The diagnosis was chronic pain.
According to the veteran's Disability Report for Social
Security, dated March 2000, the veteran reported that he
experienced constant weakness, pain, and spasms of his legs,
back, and arms, beginning in May 1993. He also reported that
he had difficulty lifting, stooping, standing, and sitting
for long periods of time and that he became unable to work
due to his shortness of breath, "shaky hands," and blurred
vision in September 1998. He reported that he worked as an
electrician, leadsman and pettibone operator in a pipe yard,
bartender, and security guard. During the course of his
employment, he loaded pipes, welded pipes, and lifted 30-
pound buckets.
The veteran was afforded a VA examination in July 2001.
According to the report, the veteran reported that he began
having right lower back pain and spasms after moving a 5
gallon water can while in service, in about February 1967.
He related that he sought medical treatment, but denied
having an x-ray at the time. He also reported that he
received treatment in the 1970s and early 1980s for his back,
but that he was unable to obtain his medical records from
these providers. He also related that he was unable to
perform heavy lifting or heavy-duty work. Examination showed
normal gait, scoliosis affecting his posture, and that the
veteran needed a little support in order to stand up from a
sitting position. He demonstrated lower back pain while
walking, but did not use an assistive device. Examination of
the lumbar spine showed painful motion, mild weakness and
tenderness, and positive straight leg raising on the right.
There was no obvious evidence of muscle spasm. Range of
motion showed flexion to 35 degrees, extension to 15 degrees,
right lateral flexion to 20 degrees, left lateral flexion to
30 degrees, right rotation to 25 degrees, and left rotation
to 30 degrees. Fatigue, weakness, lack of endurance, or
incoordination did not limit range of motion. The veteran
could bend his lower back without too much difficulty. Motor
function was 4 out of 5 bilaterally, sensation was normal,
and reflexes were normal. An x-ray showed degenerative joint
disease at L4-L5. The diagnosis was degenerative joint
disease of the lumbar spine. The examiner stated that the
veteran had a significant lower back problem, but opined that
the veteran's degenerative joint disease of the lumbar spine
was "not likely due to his service; it was more likely than
not due to his other employment" including his nearly 28
years of physical work.
Based on the foregoing medical evidence and the entire
record, the Board finds that the preponderance of the
evidence is against a claim for service connection for a
herniated disc of the lumbar spine. See 38 U.S.C.A. § 1110
(an award of service connection requires that the veteran
incur a disease or disability during service). The Board
acknowledges that the veteran's service medical records
indicate that he was treated for low back pain during
service. Nonetheless, the veteran's private and VA medical
records indicate that the veteran's current back disability
is unrelated to his in-service low back pain. Most
significantly, the examiner from the July 2001 VA examination
clearly stated that there was no evidence that the veteran's
current degenerative joint disease of the lumbar spine was
related to his service. In this regard, the Board observes
that the VA examiner attributed the veteran's current back
disability to his post-service employment. Likewise, the
Board notes that the veteran reported on his Social Security
application that his back problems began in 1993. Thus, the
only evidence linking the veteran's current back disability
to his active service is the veteran's statements. As such,
a causal link between the veteran's current back disability
and his service has not been established, because the veteran
is a layperson without medical training or expertise, and his
contentions do not constitute competent medical evidence.
See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992)
(holding that lay persons are not competent to offer medical
opinions or evidence of causation, as it requires medical
knowledge). The Board finds that the opinion provided by
the VA examiner, which was based on an examination of the
veteran, consideration of the veteran's assertions and
history, and a review of the prior evidence of record, to be
persuasive. It is also noteworthy that the veteran did not
note any back problems at the time of his discharge
examination, at which time his back was found to be normal,
and that there is no evidence that the veteran sought
treatment for his back until 1987, nearly 20 years after his
in-service treatment for back pain and nearly 18 years
following his discharge. See 38 C.F.R. § 3.303(a) (service
connection requires that the facts "affirmatively [show]
inception or aggravation . . . ."). See also Savage, supra.
Accordingly, without a link between the veteran's in-service
treatment for low back pain and the veteran's current
degenerative joint disease and herniated disc of the lumbar
spine, the Board finds that the veteran is not entitled to
service connection for a herniated disc of the lumbar spine.
Therefore, the Board finds that the preponderance of the
evidence weighs against the veteran's claim of service
connection for a herniated disc of the lumbar spine. As
there is not an approximate balance of positive and negative
evidence regarding the merits of the veteran's claim that
would give rise to a reasonable doubt in favor of the
veteran, the provisions of 38 U.S.C.A. § 5107(b), as amended,
are not applicable, and the appeal is denied.
ORDER
Service connection for a herniated disc of the lumbar spine
is denied.
WARREN W. RICE, JR.
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.